Flexible options for amending planning permissions are more bendy than first thought!

I have a dilemma at the moment! We are looking at a scheme for a client and the architect is insisting that we are going to make a Section 73 application to vary the original planning permission.

Now, there are three legal ways to amend a planning permission that has been granted and is still extant.

Section 96(a) applications fall into the ‘non-material alteration’ space and are for very minor changes that do not alter the material considerations applied to the scheme. Whilst there is no statutory definition of a non-material amendment you can think of it as something that no one would actually notice.

Where these modifications are fundamental or substantial, a new planning application under section 70 of the Town and Country Planning Act 1990 will need to be submitted. This is exactly what it says it is. A new application with everything to be considered again but with the reassuring fallback of the original application. Section 70 applications are for where you are increasing (or decreasing) the number of units or changing the description of development.

Between S96(a) and S70 of the Act is Section 73.

Section 73 of the Town and Country Planning Act 1990 allows you to apply for planning permission for a similar development but not subject to the conditions imposed on the original scheme. A new planning permission is created as a result and the two schemes exist together within the planning history and at the same time as twins. You may, of course, then choose which twin you go with as they are both valid approvals.

When Considering a S73 the Council is only allowed to consider the changes you propose rather than the totality of the scheme again. This is the dilemma I find myself in!

The Government’s Planning Practice Guidance advises that In contrast to section 96A, an application made under section 73 of the Town and Country Planning Act 1990 can be used to make a material amendment by varying or removing conditions associated with a planning permission. There is no statutory limit on the degree of change permissible to conditions under s73, but the change must only relate to conditions and not to the operative part of the permission.

Provisions relating to statutory consultation and publicity do not apply. However, local planning authorities have discretion to consider whether the scale or nature of the change warrants consultation, in which case the authority can choose how to inform interested parties.

Planning permission cannot be granted under section 73 to extend the time limit within which a development must be started or an application for approval of reserved matters must be made. Section 73 cannot be used to change the description of the development.

The government guidance on the use of S73 was the subject of the recent High Court decision of Armstrong v Secretary of State for Levelling-up, Housing and Communities & Anor [2023] EWHC 176 (Admin).

Mr James Strachan KC, sitting as a Deputy Judge of the High Court, found that the planning inspector erred in law in his interpretation of the scope of section 73 and quashed the appeal decision.

The Deputy Judge in his decision clarified that:

“Section 73 is clearly intended to be a provision which enables a developer to make a section 73 application to remove or vary a condition, provided of course that the application does not conflict with the operative part of the planning permission.

But provided there is no inherent conflict or inconsistency with the “operative part” of the planning permission – in this case the construction of a single dwelling – the planning merits of that proposed change can be assessed on its merits. No such assessment has occurred. As part of that assessment, the decision-maker will be able to consider whether the proposed change (fundamental or otherwise) is acceptable or not in planning terms, taking account of any representations received.”

The operative part of the planning permission being the description of the development granted. In the Armstrong case that was the construction of a dwelling on the site for which the Deputy Judge found that the redesign of the dwelling would cause no conflict.

S73 applications have a marked benefit in terms of the planning fee associated with them. The Fee’s guidance is clear and states:

What fees are payable for applications to vary conditions?

In order to vary the terms of a condition or to implement a planning permission without an imposed condition, it will be necessary to make an application under section 73 or 73A(2)(c) of the Town and Country Planning Act 1990. The fee for an application under section 73 or 73A(2)(c) is a flat rate fee of £234 as set out in paragraphs 5 and 6(b) of Part 1 of Schedule 1 to the 2012 Fees Regulations.

More than one condition at a time can be removed or altered on the same application without any multiplication of the fee to be paid.

So whilst it is clear that S73’s can go far beyond the scope of the minor amendment they were meant to address it is also clear that one cannot sneak in more dwellings or change the description of development using them. Dilemma solved then! Well, not quite.

As is my clients wish they want to increase the number of dwellings from 1 to many and alter the components associated tin the application they will need to step away from the flexible options on offer and bite the bullet of a full planning permission.

At least the fallback position is in place.